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Ticket touting is an emotive subject on which very strong and polarised views are held, by those involved in the selling of tickets for sports fixtures, concerts and theatres, and by some of the people who go to the events. There is no consensus as to whether "touting" means all reselling of tickets, all reselling not authorised by the original issuers, or only the shady or less reputable activities. The whole secondary market in tickets for entertainment and sporting events is regarded by some as a scourge, where parasitic profiteering threatens the very future of the industries on which it feeds. Others see it as a valuable service, a godsend to fans who are desperate to obtain tickets for oversubscribed events, and to those who find themselves unable either to use their tickets or to obtain refunds for them. Even the same individual may protest about "touts" who buy up swathes of tickets to sell on for profit, while believing that he should be free to make a profit by selling on tickets himself.
The secondary market is by no means a new phenomenon, but the growth of the Internet has transformed and expanded it, so that tickets can now be bought and sold on an enormous scale in a very short time, and it is easy for individuals to trade in tickets from their own homes in their spare time. As tickets for many popular events are deliberately put on the market at prices which are lower than many consumers are willing to pay, substantial profits can be made, not only by businesses set up for that purpose but also by consumers who may buy more tickets than they need, in the hope that the profit on resale will finance their own tickets for an event. Organisers of the events see those profits going into the hands of secondary sellers who, they say, make no contribution to putting on the event, or to the industry. While the superficially obvious solution—of increasing ticket prices to whatever level the market will bear—might keep all the potential profit within the industry and effectively eliminate the secondary market, it would run counter to the industries' pricing policies which aim to make tickets affordable by their grass roots and genuine fans upon whose continuing interest and attendance the long term wellbeing of the industries depends. We did not receive any evidence from the grass roots or fan bases complaining that they were unable to obtain or afford tickets for their chosen events. However, we believe that more information is needed on the practices of secondary ticket agents in acquiring large blocks of tickets within a very short period of their going on sale, and the effect of this on the consumer
Many event organisers have sought to control secondary selling by imposing terms and conditions which prohibit resale (for profit) and provide for cancellation of tickets sold in breach. However, the enforcement of such conditions raises its own problems. While there is technology which makes it possible to prevent the use of resold tickets for events such as the Glastonbury Festival, this is not only expensive and unsuitable for some events, but also risks alienating consumers, because of the inconvenience it may cause them, not least where they want to buy tickets as gifts. Moreover, there is uncertainty as to the extent to which such terms and conditions are enforceable in law. In part this is because conditions will not be enforceable against consumers if they are found to be "unfair" within the Unfair Terms in Consumer Contracts Regulations 1999—as they may be if they prohibit transfer without providing some other way for consumers to get their money back on unwanted tickets. It is also unclear when a consumer who habitually resells tickets at a profit would cease to be entitled to that protection. The Society of Ticket Agents and Retailers has been working with the Office of Fair Trading with a view to producing model terms and conditions which would be approved by the OFT. We were told by the OFT that such a model code would be published in August. We are disappointed that the OFT has still not done so, and we urge the OFT to explain the reasons for the delay. We look forward to the outcome of those discussions but, since only the courts can decide what is or is not unfair to consumers, and what distinguishes a consumer from a trader in this context, some uncertainty will inevitably remain.
While we accept that a blanket refund policy may not be a realistic option for organisers, we believe that they should provide a better service to consumers who are simply seeking to avoid making a loss on tickets which they are unable to use.
Representatives from both industries have suggested many other ways in which the flourishing secondary market may harm either the industries themselves, or their consumers, for instance by giving fraudulent operators a cloak of respectability so that consumers are misled into believing that they are dealing with legitimate outlets, by providing consumers with inadequate information and protection, and by tainting the image of the events or their organisers, particularly in the eyes of cheated consumers who had not appreciated that they were not dealing with authorised sources. The Internet has increased the scope for fraud, making it easier for dishonest traders to trick purchasers into paying for tickets which are inferior to what was offered, or may be forged, or may not even exist.
Representatives from secondary marketplaces have argued that the legitimate secondary market operates to the benefit of consumers in many ways, such as by offering them the convenience of buying tickets at the time which best suits them, and the protection and security of known and trusted services rather than the underground or shady sources which would be the alternative.
Event organisers say that they have now done as much as they can to prevent unauthorised reselling, and that the time has come for the Government to step in, to ban it, or at least to cap the profits which can be made from it.
Although unauthorised reselling of tickets has been made a criminal offence in the context of tickets for football matches and for Olympic events, those offences were created as specific responses to particular circumstances, rather than to mark disapproval in principle of secondary selling (whether or not for profit). To extend the ban to other specific events would simply exacerbate the confusion inherent in the existing two-tier system and would do nothing to address the complaints of the organisers of other events. Any attempt to ban the secondary market outright would also be a very serious step in that it would criminalise what has been a perfectly lawful activity, which is evidently valued and freely made use of by many consumers, in order to support the industries' endeavours to target particular audiences. We do not consider that it would be either practicable or right to do so.
However, we did receive evidence of unacceptable practices by some secondary sellers, such as listing of free tickets for charity events and advertising tickets which were not yet on sale and could not therefore be in their possession. We urge secondary sellers not to list tickets distributed free of charge, for example for charity events, or to particular groups, such as children, the disabled or amateur sports clubs. In the interests of consumer confidence and safety, too, we would like to see secondary marketplaces require sellers to provide more information about ticket details including, ideally, face value, block, row and seat numbers. However, we recognise that this is only practical if the event organisers do not simply cancel all tickets advertised for sale in the secondary market.
We also believe that the existing situation whereby large profits can be made on the secondary market with no benefit to the organisers or owners of the primary rights is unfair and must be addressed. We share the view of the Government that a voluntary solution is infinitely preferable to statutory regulation and that intervention by Government should only be considered as a last resort. However, in the absence of a voluntary code, it is understandable that pressure will continue to extend special protection to the 'Crown Jewel' sporting events and many popular music events.
We welcome the initiative of the Music Managers Forum to seek agreement for a voluntary scheme under which sellers of tickets in the secondary market would pay a proportion of the profit to the original organisers to be distributed in the same way as the original amount paid. In return, the organisers would recognise the legitimacy of the secondary seller and not seek to invalidate the ticket being sold. Such a scheme would recognise the right of those in the entertainment and sports industries to a share in the profit made by others out of the events for which they are responsible in the same way that creators of artist works now benefit from sales of their works through resale royalties. We believe that a scheme of this kind offers the best chance of meeting the concerns of event organisers while still allowing the secondary market to operate unfettered and we strongly encourage all those involved to consider it seriously.
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